On October 20, 2025, U.S. Citizenship & Immigration Services (USCIS) updated its website to provide further guidance regarding the $100,000 payment required as a condition of eligibility for certain H-1B petitions, which was first announced in the Presidential Proclamation issued on September 19, 2025.    

Which H-1B Petitions are Subject to the $100,000 Payment? 

The recent USCIS guidance has clarified that the $100,000 payment applies to new H-1B petitions filed on or after September 21, 2025, that meet any of the following criteria: 

• Beneficiaries outside the United States who do not have a valid H-1B visa at the time of filing; 
• Petitions requesting consular notification, port-of-entry notification, or pre-flight inspection notification, even if the beneficiary is currently present in the United States; and 
• Petitions requesting a change of status, amendment, or extension of stay where USCIS determines the beneficiary is not eligible for the requested benefit (e.g., the beneficiary is not maintaining valid nonimmigrants status or departs the United States before USCIS adjudicates the change-of-status request).  

Which H-1B Petitions are Exempt from the $100,000 Payment? 

The recent USCIS guidance has clarified that the $100,000 payment does not apply to H-1B petitions filed: 

• Before 12:01 AM EDT on September 21, 2025; 
• On behalf of individuals who hold valid H-1B status or previously-issued and currently-valid H-1B visas; 
• On behalf of current H-1B visa holders who travel internationally and reenter the United States; or 
• On or after September 21, 2025, that request an amendment, change of status, or extension of stay for a beneficiary inside the United States, and the beneficiary is granted that amendment, change, or extension by USCIS. 

USCIS has clarified that beneficiaries covered under the above exemptions will remain exempt from the $100,000 payment even if they later depart the United States and seek a visa or reentry based on an approved petition.  

Exceptions Granted by the Secretary of Homeland Security 

USCIS has further clarified that the Secretary of Homeland Security may grant exceptions to the $100,000 payment requirement only in “extraordinarily rare circumstances” where the Secretary determines that: 

• The H-1B worker’s presence in the United States is in the national interest; 
• No U.S. worker is available to fill the role; 
• The worker does not pose a threat to U.S. security or welfare; and 
• Requiring payment would significantly undermine U.S. interests.  

USCIS has provided a mechanism for requesting such an exception, which must be completed prior to filing the H-1B petition. USCIS will deny petitions that are subject to the fee that are filed without a copy of the proof of payment or evidence of an exception from the Secretary of Homeland Security.  

Although the initial Proclamation contemplated the possibility of national interest exceptions for certain H-1B employers and/or industries, this most recent USCIS guidance does not contain any information on blanket exceptions and only outlines the process for seeking an individual exception. As a result, cap-exempt institutions currently appear to be subject to the fee if they are not granted an exception outlined above. 

Lawsuits have been filed challenging the legality and enforcement of the $100,000 fee, including a suit filed on October 16, 2025, by the U.S. Chamber of Commerce. Foster LLP will continue to monitor the evolving litigation landscape and provide additional updates via our Immigration Updates and our firm’s website at www.fosterglobal.com.